Another Rule to Be Published With No Offsets, Despite Trump’s Order

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By Cheryl Bolen

Another final rule is set to be published in the Federal Register on July 10 that makes no reference to the Trump administration’s new regulatory policy, which requires two deregulatory actions and offsets for each new rule issued.

The Department of Energy is set to publish a final rule on Energy Conservation Standards for Walk-in Cooler and Freezer Refrigeration Systems, which is estimated to cost $600 million.

In June, the Environmental Protection Agency published a final rule on Effluent Limitations Guidelines and Standards for the Dental Category, which set new standards to reduce discharges of mercury from dental offices into municipal sewage treatment plants.

Neither rule, however, appears to comply with Executive Order 13,771 on Reducing Regulation and Controlling Regulatory Costs, which requires that any significant regulation issued after noon on Jan. 20 include two deregulatory actions and be completely offset.

Policy Still Under Development

In April, the OMB issued guidance to agencies explaining the regulatory order, saying that each Federal Register notice should identify whether the regulation is an EO 13,771 regulatory action.

Then, to the extent practicable, agencies should issue deregulatory actions before, or concurrently with, the regulation it intends to offset, the guidance said.

But the policy is new and the White House has signaled that it is still developing its regulatory budgeting practices. Some decisions are being left to Neomi Rao, the president’s nominee to lead the Office of Information and Regulatory Affairs (OIRA), an OMB unit that reviews all significant federal regulations.

The Senate is expected to vote to confirm Rao when it returns on July 10.

Waiting for Regulatory Agenda

A key piece of the puzzle still missing is the semiannual Spring 2017 Unified Agenda of Federal Regulatory and Deregulatory Actions, which this year will list all deregulatory actions that agencies plan to take to offset their new regulations.

Although there is no formal deadline for submitting the agenda, this is the latest that the agenda has gone unpublished.

To date, agency rulemaking has been slow and the few final rules that have been issued either haven’t been subject to the executive order’s requirements or have, but haven’t identified any offsets.

Several categories of regulation may qualify for a full or partial exemption, including expressly exempt actions, emergency actions, statutorily or judicially required actions and de minimis actions, according to the OMB’s guidance.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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